Introduction

This guidance sets out the factors to be considered when reviewing cases and prosecuting offences classified as racist or religious hate crime. It also addresses the approach to be taken in other cases where race or religion are a factor.

Referral of Racist and Religious hate crime cases to CPS

The Director's Guidance on Charging requires offences classified as hate crime under CPS policies to be referred to a prosecutor for early consultation and a charging decision, whether admitted by the suspect or not.

Flagging and identification of racially and religiously aggravated crime

It is essential that the CPS identifies all those cases that might properly be prosecuted as specific racist or religious crimes, or where evidence of such hostility can be put before a court when it is deciding on sentence.

All cases referred to the CPS by the police which have been identified as racially and/or religiously aggravated, should be flagged immediately on Compass CMS using the appropriate case monitoring codes. Similarly, if the receiving CPS lawyer perceives that the case involves an element of hostility towards disability, the appropriate monitoring code should be added on CMS. The decision to flag can be taken at almost any stage of the process; if not already flagged by the investigating officer, it might be flagged by the reviewing prosecutor, at review stage even up to and including the trial. It is best practice to flag as soon as possible in order to ensure the correct support is made available to the victim and facilitate a proactive investigation of the evidence.

The CPS uses definitions agreed with the National Police Chiefs' Council to identify racist or religious incidents/crimes and to monitor the decisions and outcomes:

"Any incident/crime which is perceived by the victim or any other person to be motivated by hostility or prejudice based on a person's race or perceived race" or

"Any incident/crime which is perceived by the victim or any other person to be motivated by a hostility or prejudice based on a person's religion or perceived religion."

Flagging is a subjective question. Flagging a case puts the CPS on notice that someone at some stage has perceived the incident that gave rise to the case had such an element of racial or religious hostility or prejudice to it. For a conviction to receive enhanced sentencing in court the police need to provide sufficient evidence to prove the hostility element, however this is not required for flagging purposes. Therefore, whilst not all flagged cases will result in specific racially or religiously aggravated charges or an application for an uplift of sentence under s145 of the Criminal Justice Act 2003, they should still be flagged on CMS.

It is not CPS policy to remove a flag in the absence of sufficient evidence to support a sentence uplift. This in part reflects the commitment to treat hate crime seriously and to support the victim's perception and also to encourage community confidence in reporting all such offending. However, if a flag has been attached to a file due to an administrative error, it will be removed, to support increased data accuracy. Removal of a flag can have serious consequences and advice should be sought from a hate crime specialist or a senior manager before removal.

Some cases may need more than one flag, for example, cases that also involve domestic violence, rape, or homophobic, biphobic, transphobic or disability elements. Accurate flagging of cases is important: it means that CPS can monitor how these cases are handled and can report back to communities on our performance in tackling these types of hate crime.

It is important that the relevant fields on Compass CMS are completed where flagged hate crimes qualify for an enhanced sentence. This enables monitoring of whether or not the prosecutor drew the court's attention to the sentencing provisions and whether or not the court applied an enhanced sentence.

Case Building

Prosecutors must adopt a proactive approach to seeking further information from the police to help them to decide if a case can be prosecuted as a racially or religiously aggravated hate crime and that there is evidence that should be presented to the court at sentence.

Case Reviews

If the case passes the evidential stage and it is a case of racial or religious hate crime, or it is motivated by discrimination against the victim's ethnic or national origin, or religion or belief, it is more likely that a prosecution is required in the public interest: see paragraph 4.12(c) of the Code for Crown Prosecutors.

In cases where s145 may apply, since this provision does not create an offence it is not necessary to consider the aggravating factor when assessing the evidential stage of the Full Code Test.

In every case that has been flagged as a racially or religiously aggravated crime case, the reviewing prosecutor should fully address:

how the specific offences under CDA 1998 apply to the facts of the case and specifically what evidence supports that decision;

how s145 of the Criminal Justice Act 2003 does or does not apply to the circumstances of the case and give reasons for their decision;

if s145 does not apply, whether there is evidence of the offender targeting an at risk victim because of their race or religion (or presumed race or religion), or causing greater harm to the person because of this;

what, if any, special measures are appropriate - to be discussed with the witness. See the legal guidance on Special Measures.

any other support needs. See the legal guidance on Interpreters and the National Agreement.

A review of cases involving racially and religiously aggravated crime should consider the following non-exhaustive set of issues:

Incident

Was there any use of derogatory language towards ethnicity, race, nationality or religion, (including caste, converts and those of no faith)?

Was it a sustained attack?

Did it involve excessive violence?

Was cruelty, humiliation or degradation involved?

Was the area in which the incident occurred particularly associated with a specific community defined by race or religion or was this in response to or undertaken at a time coinciding with a specific festival, carnival or ceremony associated with a specific community and its ethnicity, race, nationality or religion?

Perpetrators

Was hostility based on the victim's race or religion (or presumed race or religion) demonstrated by the perpetrator?

Have there been any previous incidents involving the offender and hostility or targeted anti-social behaviour?

If so, what was the nature and location of previous incidents?

Have the incidents escalated in severity and frequency?

Has opportunistic offending become systematic and regular targeting?

What was the role of any bystanders?

Were there multiple perpetrators condoning and encouraging, taking photos/videos?

What evidence is there to suggest this is not a racially or religiously aggravated crime?

If satisfied that there is sufficient evidence to prove that the offence is aggravated by hostility on the grounds of race or religion, prosecutors should make it clear to the defence and to the court at the earliest opportunity that they intend to so advise the court for sentencing purposes by using CMS letters to this effect.

Racist and religious crime - the legislation

Parliament has passed specific legislation aimed at outlawing crime where the offender is motivated by hostility or hatred towards the victim's race or religious beliefs (actual or perceived). A table setting out some of the more commonly used legislation is at Annex A. For conduct not covered by the specific offences in the Crime and Disorder Act 1998, it may be appropriate to remind the court of its duty to treat evidence of racial or religious hostility as an aggravating factor increasing sentence as provided by section 145 of the Criminal Justice Act 2003.

It is important that prosecutors are aware of the full range of available offences when deciding on the most appropriate charge to prosecute in a particular case.

Crime and Disorder Act 1998 (as amended)

This Act created a number of specific offences of racially aggravated crime, based on offences of wounding, assault, damage, harassment and threatening/abusive behaviour.

An amendment (December 2001) extended the scope of the Act by creating new specific religiously aggravated offences.

S145 Criminal Justice Act 2003

the offender demonstrating towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or

the offence being motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

Note that these are alternatives. This means that in a case where a demonstration of hostility can be proved, there is no need also to prove motivation, and vice versa.

CPS application of s145

A sentence may be increased under s145 in relation to any offence. Much of the harassment experienced by racial or religious communities is persistent, low level offending. In order to counter this type of behaviour it is important that s145 uplifts are applied for in all appropriate cases. This approach is intended to ensure that racially and religiously aggravated hate crime is punished properly and that justice is afforded to all.

Definition of a "racial group"

The Act says a "racial group" means a "group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."

The definition is wide and victims may come within the definition under more than one of the references. Gypsies and some travellers, refugees or asylum seekers or others from less visible minorities would be included within this definition. While Romany gypsies have long been recognised as an ethnic racial group (Commission for Racial Equality v Dutton [1989] QB 783), in more recent times and certainly since the first instance discrimination case of O'Leary v Punch Retail (HHJ Goldstein, Westminster County Court, 29 August 2000), Irish Travellers have also been considered an ethnic racial group. Whilst this has not been considered by an appellate criminal court, the O'Leary case is regarded as being persuasive if the point is ever taken.

Whilst there has been no case law around Roma in the UK, the European Court of Human Rights recognises that the community forms a distinct ethnic group and prosecutors are recommended to apply the definition provided by the legislation to argue for inclusion.

Various cases in the past have considered what constitutes membership of a racial group. Some decisions have concluded that persons associated by their religious beliefs may also be part of a racial group. Prosecutors should consider on the facts of each case if the aggravating feature arises from hostility towards a religious belief or a racial group (or a combination of both).

There has been a legal ruling that Sikhs can be included in the definition of a racial group (Mandla v Dowell-Lee [1983] 2 AC 548). In the Mandla case, reference is made to the judgment in King-Ansell v Police [1979] 2 NZLR 531 as being a persuasive authority for Jews being included in the definition of a racial group as well as a religious group. Although not criminal cases, further support for this proposition can be found in the cases of R v JFS [2009] UKSC 15 which related to the legality of the admission policy of a Jewish secondary school and Seide v Gillette Industries Ltd [1980] IRLR 427 in which an Employment Appeal Tribunal ruled that anti-Semitic comments made by a fellow-worker were made because he was a member of the Jewish race, not because of his religion.

Prosecutors are directed to Operational Guidance on the Knowledge Hub and the working definition of anti-Semitism provided by the International Holocaust Remembrance Alliance as a useful tool.

Definition of a "religious group"

The Act defines a religious group as, "a group of persons defined by reference to religious belief or lack of religious belief." This includes Muslims, Hindus and Christians, and different sects within a religion. It also includes people who do not hold any religious beliefs at all.

Sectarian hostility is covered by this definition and hostility towards converts and towards those of no faith.

Hostility

Hostility is not defined in the legislation. Consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, prejudice, unfriendliness, antagonism, resentment, and dislike.

Demonstrating hostility

The words of the subsection require an indication by the offender of hostility towards the victim based on race or religion. The demonstration of hostility must be nearly contemporaneous to the conduct element of the offence (at the time of the offence or immediately before or after).

The demonstration of hostility is likely, in many cases, to be something different from and additional to the conduct element of the offence. Mere evidence of the commission of the substantive offence against a victim is not sufficient.

Motivated by hostility

The second limb of section 145 is concerned with the offender's motivation, requiring proof that the substantive offence was wholly or partly motivated by hostility towards persons who are of a particular race or religion. Motive can be established by evidence relating to what the defendant may have said or done on other occasions or prior to the current incident. In some cases, background evidence could well be important if relevant to establish motive, for example, evidence of membership of, or association with, a racist group, or evidence of expressed racist views in the past might, depending on the facts, be admissible in evidence.

With reference to interpretation, it should be noted that section 28(1)(b) of the Crime and Disorder Act 1998, which refers to racial hostility, has been held to be wide enough to include hostility towards one member of such a group, since section 6(c) of the Interpretation Act 1978 provides that "words in the plural include the singular" unless the contrary intention appears, and no such contrary intention appears in the provision.

In addition, the circumstances include those where an offence is motivated by hostility towards a third party, based on the relevant characteristic, who is not present: see Taylor v DPP [2006] EWHC 1202 (Admin). Accordingly, an offence committed against one person (or many persons) but motivated by hostility towards another person or persons on the basis of their perceived disability would seem to satisfy the statutory test.

Case law

The following cases illustrate the approach that the courts have adopted when interpreting the law:

In R v Rogers (2007) 2 W.L.R. 280, the defendant was involved in an altercation with three Spanish women during the course of which he called them "bloody foreigners" and told them to "go back to your own country". The House of Lords, in upholding the defendant's conviction, held that the definition of a racial group clearly went beyond groups defined by their colour, race, or ethnic origin. It encompassed both nationality (including citizenship) and national origins. The statute intended a broad non-technical approach. Furthermore the victim might be presumed by the offender to be a member of a particular group, even if that was not correct. The House of Lords added that the fact that the offender's hostility was based on other factors in addition to racist hostility or xenophobia was irrelevant. The court also observed that the necessary hostility could be demonstrated by the wearing of swastikas or the singing of certain songs.

The demonstration of hostility need not be based on any malevolence towards the group in question. Disposition at the time is irrelevant: see DPP v Green [2004] EWHC 1225 (Admin.) and R v Woods, in which it was irrelevant that the offender, who used racially abusive language to a doorman after being refused admission, might well have abused anyone standing in the victim's place by reference to any obvious physical characteristic.

The motivation based on hostility need not be the sole or main motivation for the offence; it may also be motivated by other reasons. In DPP v McFarlane [2002] EWHC 485 (Admin), the defendant shouted threatening and racist abuse at the victim after finding the victim parked in a disabled bay in which the defendant was entitled to park. It was immaterial that the defendant may have had an additional reason for uttering the racial words in question.

The victim's reaction to the hostility is not relevant. See R v Woods, in which the victim was called a "black bastard" but said in evidence that he was "not bothered" by such comments. The Administrative Court found that the use of racist abuse during the commission of the basic offence made out the test for racial aggravation.

Demonstrated: multiple offenders

Prosecutors will need to analyse carefully the facts of a particular case to determine whether a particular offender can be said to have participated in a demonstration of hostility.

In R v Davies and Ely [2004] 2 Cr App R (S) 148 (29), a joint allegation of wounding with intent, the fact that one offender uttered words of racial abuse during the attack did not make all guilty of the aggravated offence, on the facts of the case, and the defendants should not be so sentenced when the evidence did not identify the one who uttered the words.

However, in RG and LT v DPP May LJ said that, "an offender may demonstrate racial hostility by joining in the activities of a group of people where a sufficient number of members of the group are themselves demonstrating racial hostility, and where the defendant's adherence to the group is such as to go beyond mere presence within the group, but so as to associate himself or herself with the demonstration of racial hostility which the group as a whole is displaying".

How to prove an offence was racially or religiously aggravated within the meaning of the Crime and Disorder Act 1998 and section 145 of the Criminal Justice Act 2003.

To assist prosecutors to build cases that will satisfy the criteria for an increased sentence under s145, the elements of each subsection that need to be satisfied are set out below, followed by the evidence that will be necessary or useful to establish those elements.

A. Demonstrating hostility

The elements to be satisfied are that:

The offence to be sentenced has one or more identifiable victims.

The victim (or one of them) belongs to a particular racial or religious group or there is evidence that the offender presumed that he or she did so at the time of the offence (whether or not that was in fact correct).

The offender, by words or deeds or other indication, demonstrated (i.e. actually manifested or indicated) some hostility towards the victim based on the actual or presumed membership of a racial or religious group. Where the offence itself involves some hostile act towards the victim (i.e. an offence of assault) there must additionally be some evidence of a demonstration of hostility on grounds of actual or perceived membership of a racial or religious group. It need not be proved that the offender was actually motivated by any malevolence on grounds of the race or religion but it must be shown that, viewed objectively, he did in fact make some outward indication of hostility on that ground. Verbal abuse, referring to the membership of that group or a feature of it, will suffice provided it actually demonstrates hostility towards the victim. Expressions of, or behaviour consistent with, contempt for the individual victim is unlikely alone to suffice, unless it can be shown to amount to the necessary demonstration of hostility based on the actual or presumed membership.

The demonstration of hostility must have occurred at the time of or immediately before or after the conduct element of the substantive offence.

In any case involving multiple offenders, consider first whether there is evidence that each offender, by his behaviour in committing the conduct element of the substantive offence, associated himself with the demonstration of hostility proved (in which case all will be liable for the aggravating feature). If there is no such evidence, can it be shown that the individual offender was himself responsible for the demonstration of hostility relied upon.

The following evidence will be necessary:

Evidence of the utterance, doing or showing of any indication of hostility towards the victim. The evidence should be as particular as possible as to the terms of the indication of hostility.

The victim (or one of them) belongs to a particular racial or religious group or there is evidence that the offender presumed that he or she did so at the time of the offence (whether or not that was in fact correct).

Alternatively and/or additionally, evidence that the offender either knew or presumed that the victim belonged to a racial or religious group.

Evidence that the hostility referred to in (1) was based on the actual, known or presumed membership of a race or religion.

Evidence that the demonstration of hostility relied upon was more or less contemporaneous with the conduct element of the offence, or that it can immediately be related to it in time.

In addition, evidence of some malevolence towards the victim based on his or her actual or presumed race or religion, although not necessary, will be useful. This need not necessarily be contemporaneous to the substantive offence.

It should be noted that mere evidence of the commission of the substantive offence against a victim who identifies with a race or religion will not suffice. That is not to say that it is irrelevant: evidence of the commission of an assault offence or one that involves the use or threat of violence may well be good evidence of the relevant hostility being present or demonstrated. Typically however there will be another explanation for the commission of the offence and so further evidence of a specific, express demonstration of hostility based on presumed or actual race or religion will be required.

Motivated by hostility

The elements to be satisfied are that:

The offender can be shown to harbour a hostility towards a person or persons who belong to, or are presumed to belong to, a religious or racial group.

At least one reason why the offender committed the offence was his hostility towards that person or such persons who belong to, or are perceived to belong to, this group i.e. his purpose or incentive for committing the substantive offence included that hostility, even if it was also motivated by other reasons. It need not be shown that it was his sole or main motivation.

It need not necessarily be the case that the immediate victim of the offence belongs to this group. Indeed, it is not necessary that there is one, or more than one, individual victim of the offence, provided that the directed hostility is one of the motivations. For example, an offence may be directed at:

A friend or associate

A Synagogue or Mosque

An organisation known to support members of ethnic or religious groups

The following evidence will be necessary:

Primary evidence, whether direct or circumstantial, from which it can be deduced or inferred that the offender has a hostility towards people (or one person) of a particular race or religion. The kind of evidence will vary from case to case but may well include, for instance:

words, whether contemporaneous or not;

writings;

social media postings;

insignia;

membership of far right groups

presence with others promoting such hostility or association with them;

previous incidents of hostility, e.g. targeting only persons of a particular religion as the victims of criminal attacks or forms of abuse, such as a Jewish person's house for criminal damage but no other houses in the same street; and

previous convictions for offences directed at similar victims.

Evidence from which it can be inferred that the current offence is motivated by the hostility referred to. In some cases the existence of the hostility and the fact of its contribution to motivation may derive from the same evidence and may be direct and simple: for example, the words accompanying the conduct element of the offence, as reported by the victim, may make clear the hostility of the offender for persons of a particular race or religion and the association of the feeling with the commission of the offence. In other cases a more determined search for such evidence will be necessary.

In cases where the obvious motivation for the commission of the offence is common to all such offending (theft, robbery, sexual offending, drugs offending, etc.) there will have to be discrete, additional evidence of motivation which displaces the obvious inference.

In cases where the offence charged usually has a fact specific motive (public order offences directed at individuals, offences against the person, etc.) it may be that the primary evidence readily gives rise to the conclusion that the hostility is based on race or religion. If not, some further, secondary evidence of motive will be necessary.

Incitement to Racial Hatred - Part III Public Order Act 1986

For an offence to be committed under any of these sections of the Public Order Act 1986, there has to be one of the acts described therein: it has to be "threatening, abusive or insulting", and it has to be intended to or likely in all the circumstances to stir up racial hatred.

The words "threatening, abusive or insulting" are to be given their ordinary meaning and case law dealing with other provisions of the Public Order Act 1986 can assist with this.

Racial hatred is defined in section 17 of the Act. The prosecution must prove that hatred was intended to be stirred up or that it was likely to be stirred up. "Likely" does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant.

Article 10 of the European Convention on Human Rights [ECHR] allows freedom of expression save in certain limited circumstances. These circumstances include the offences contained within Part III of the Public Order Act 1986 (ss18-23).

Additionally, Article 17 of the Convention states: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." Relevant case law includes Glimmerveen and Hagenbeek v Netherlands 18 DR [1987] and Kuhnen v Germany 56 DR [1988].

In deciding upon the public interest of charging these offences it is essential that prosecutors keep in mind that in a free, democratic and tolerant society people are able to robustly exchange views, even when these may cause offence. However, the rights of the individual to freedom of expression must be balanced against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.

All such allegations are by their very nature highly sensitive. For that reason, and to ensure a consistent approach, any allegation under this legislation, must be referred by the relevant CPS Area to the Special Crime & Counter Terrorism Division (SCCTD). Referral means the submission of a report by the Area to enable SCCTD and the Area to have an informed discussion about where the responsibility for the case should lie.

When an Area becomes aware of such a case, it should be referred to SCCTD within seven days. If it is decided that the case should be prosecuted as an offence of incitement to racial hatred, SCCTD will take over the conduct of the case from the Area. If SCCTD considers that it is clearly a case where incitement to racial hatred does not apply, the case should be returned to the Area within seven days of that decision being made.

If SCCTD decides to deal with a case, the file is held there and dealt with there. Thereafter, cases can only proceed with the consent of the Attorney General.

Racial and Religious Hatred Act 2006 - Stirring Up Religious Hatred

The Racial and Religious Hatred Act 2006 came into force on 1 October 2007. It created new offences of stirring up religious hatred, which are significantly different from the race hate offences contained within Part III of the Public Order Act 1986.

The offence is committed if a person uses threatening words or behaviour, or displays any written material, which is threatening, if he intends thereby to stir up religious hatred. Threatening is the operative word, not abusive or insulting. Possession, publication or distribution of inflammatory material is also an offence. The offence can be committed in a public or private place, but not within a dwelling, unless the offending words and behaviour were heard outside the dwelling, and were intended to be heard. The defendant must intend to stir up religious hatred; recklessness is not enough.

There is a freedom of expression defence contained in Section 29J, which confirms that nothing in the Act "... prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult, or abuse of particular religions, or the beliefs or practices of its adherents."

Prosecutions for this offence require the consent of the Attorney General and are dealt with under the same arrangements as offences of inciting racial hatred.

However, CPS Areas are required to carry out an initial review and prepare a report if the case is to be referred to SCCTD confirming that there is at least on the face of it evidence of the required legal elements.

This offence is committed when a group of people, or one person acting alone, chants something of a racialist nature at a designated football match. "Racialist" means the same as "racist".

To prove this offence, the prosecution has to show that the chanting, which means the repeated uttering of words or sounds, was threatening, abusive or insulting to another person because of that person's colour, race, nationality (including citizenship) or ethnic or national origin.

It is not necessary to prove that the chanting was directed at a particular individual or group, although it will often be directed at a player or players from Black and minority ethnic communities.

The offence only applies to a "designated" match as specified in the Football (Offences) (Designation of Football Matches) Order 2004, namely, one involving a club that it a member of the Football League, the Football Association Premier League, the Football Conference or the Scottish Football League or the Welsh Premier League, or whose home ground is for the time being situated outside England and Wales, or represents a country or territory. The definition also includes a match in competition for the Football Association Cup (other than in a preliminary or qualifying round).

If convicted, the accused person can be fined (level 3), and, in addition to any other penalty, banned from attending football matches both in this country and abroad.

Even when a person is not charged with an offence, a magistrates' court may issue a similar banning order against a person who has been involved in violent behaviour before, if the court is satisfied that this would help to prevent violence or disorder at football matches in the future. The police (and not the CPS) have the power to apply to the court for a banning order in these circumstances. Breach of a banning order is punishable by a maximum penalty of up to six months' imprisonment.

The crime does not apply to chanting which is of a religious nature. In such circumstances, it may be appropriate to charge religiously aggravated public order offences.

This offence is aimed at specific behaviour within football grounds at designated matches and was introduced to combat the problem of mass racist chanting.

However, this offence should not be seen in isolation and it is not the only legislative tool available to deal with racist or religious football related crime.

In some situations, it might be more appropriate to charge other offences, such as specific racially or religiously aggravated public order offences. This may be the case, for example, where:

the offence is committed outside the stadium at a designated football match;

a public order offence is committed where religious as opposed to racist hostility is demonstrated to the victim or victims; or

racial abuse and harassment of black and minority ethnic players takes place at a non-designated football match, such as at an amateur game.

Other religious offences

In addition to the religiously aggravated offences, prosecutors should be aware tare several other statutory offences designed to protect acts of worship of various kinds which may be useful offences for prosecutors to bear in mind.

Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 creates an offence of violent or indecent behaviour in any place of worship that has been certified under the Places of Worship Registration Act 1855 and the Act also affords protection to a person preaching or carrying out other religious duties. Mosques and synagogues are certified and are therefore covered by this legislation.

The penalty on conviction is a level 1 fine or up to two months' imprisonment. Prosecutors should consider if another charge with a higher maximum penalty is more appropriate to deal with the kind of criminal behaviour which could be covered by section 2 of the 1860 Act. There might be circumstances, however, in which a section 2 offence is more appropriate simply to mark the anti-religious nature of the offence and where the court's sentencing powers for that offence are considered sufficient.

Section 36 of the Offences Against the Person Act 1861 creates an offence of assaulting 'a clergyman or other minister' or preventing them from officiating at religious services. This is an either way offence which carries a maximum penalty of two years' imprisonment on indictment.

There are also specific offences under the Cemeteries Clauses Act 1847 and the Burial Laws Amendment Act 1880 of causing disturbances in cemeteries and disrupting or obstructing burials respectively.

Victim and Witness Issues

To ensure that 'vulnerable' and 'intimidated' witnesses have access to the support they need, it is important for prosecutors to be familiar with CPS Operational Guidance in relation to the Victims' Code and with legal guidance on Special Measures.

The use of Victim Personal Statements should be encouraged in all hate crime prosecutions and requests should be made to the police at the earliest opportunity. A Community Impact Statement may also be made to show the impact of offending on the wider community.

Victims of hate crime are entitled to an enhanced service under the Victims' Code and in the event of a decision to end the case or to substantially alter charges, the victim must be notified of the reasons within one day. The victim should also be advised how they can access further information from the CPS and seek a review of the decision.

A meeting must be offered to the victim in hate crime cases in accordance with the Victims' Code. The meeting could be a dedicated teleconference or a face-to-face meeting.

A meeting is not required when the CPS makes a decision not to prosecute during a charging consultation save for in homicide cases.

Withdrawal

In cases with a racist or religious element - as in all cases - the reviewing prosecutor must apply the Code for Crown Prosecutors with regard to the determination of the public interest. The CPS prosecutes on behalf of the public at large and not just in the interest of any particular individual. However, when considering the public interest, prosecutors should always take into account the consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim.

Many members of Black, Asian and Minority Ethnic communities and faith communities do not report racist or religious crime to the police because of a lack of confidence in the criminal justice system. When offences are eventually reported, previous failures to report should not be seen as diminishing a witness's credibility.

In cases where the victim or witness has reported a case to the police, the defendant has been charged, and the victim or witness then decides that they no longer wish to give evidence, it is essential that the police are asked to make full enquiries into why support for the prosecution has been withdrawn. The CPS must:

ask the police to take a written statement from the victim explaining the reasons for that withdrawal, confirming whether the original complaint was true and identifying whether the victim has been put under any pressure to withdraw support;

ask the police to give their views and, where appropriate, consult the Area Hate Crime Co-ordinator.

As a result of receiving the withdrawal statement and accompanying police report, prosecutors may need to consider whether further charges, for example, witness intimidation or harassment are appropriate. It may also be appropriate to ask the police to offer the victim the services of a specialist support agency if this has not already been done.

The prosecutor should also liaise closely with the Witness Care Officer to establish what support has been provided to the victim and to establish whether it would be appropriate to offer the victim the services of a specialist support agency if this has not already been done. The prosecutor must also have regard to any special measures that may help the victim or witness to give evidence.

Continuing a case where the victim indicates a withdrawal of support

If a special measures application is not possible or the victim remains unwilling to give evidence, consideration must be given to whether any of the following options is possible and appropriate:

proceeding without using the victim's evidence; for example, by relying on statements from other witnesses, 999 call recordings, admissions in interview, CCTV evidence, scientific evidence, photographs and officers' statements;

making a hearsay application under section 116 of the Criminal Justice Act 2003;

compelling the victim to give evidence; or

discontinuing as a result of the victim withdrawing support for the prosecution.

In addition to the evidence of the nature and seriousness of the offence, background information is crucial in helping a prosecutor to make the correct decision about how to proceed in a case where the victim has withdrawn their support for the prosecution. Some factors that should be considered include:

the ability of the victim to give evidence;

whether there is an on-going relationship between the victim and the defendant;

if there is an on-going relationship, the history of that relationship and any previous incidents;

the likelihood of the defendant offending again;

the impact on the victim of proceeding or not proceeding with the case; and

whether there have been any threats made since the incident.

Witness Summons

Section 169 of the Serious Organised Crime and Police Act 2005 allows the court to issue a witness summons if it considers it to be in the interests of justice to do so.

Before taking a decision to issue a summons to require the victim to give evidence, prosecutors must make enquiries to satisfy themselves as far as possible that the safety of the victim will not be endangered by their decision. The safety of the victim is a prime consideration.

If the reason for a victim or witness's withdrawal is based on fear or intimidation, the prosecutor needs to have such evidence brought to their attention. This will allow appropriate decisions to be made about any applications under section 116(2)(e) of the Criminal Justice Act 2003. Such applications are only likely to succeed where there is other evidence to put before the court. Section 116 applications are often unsuccessful when the victim is the only witness to the offence, because in such cases it is very difficult to satisfy the court that justice is being served when the defence cannot cross-examine the only witness against them.

If there is insufficient evidence to continue without the evidence of the witness or victim, the reviewing prosecutor will need to weigh up whether the facts of the case are sufficiently serious to require the victim or witness to attend court under a witness summons .The final decision is that of the prosecutor, but the decision to compel a witness to give evidence may be construed negatively, so every attempt should be made to regain the victim's or witness's support for the prosecution wherever possible.

Alternative Charges

It is important that prosecutors are familiar with the circumstances in which courts can return alternative verdicts without the need for alternative charges being laid, or alternative counts on an indictment being preferred.

The Crime and Disorder Act 1998 makes provision for statutory alternatives in respect of some of the racially or religiously aggravated offences.

Section 6(3) Criminal Law Act 1967 allows for alternative verdicts in trials on indictment where the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial. A summary only offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment a count for common assault etc.).

Where the Criminal Law Act 1967 does not apply, (for example in the magistrates' courts) or where there are no statutory provisions for alternative verdicts, consideration has to be given to including alternative counts on the indictment, or drafting charges in the alternative.

In summary cases, there is no power for the court of trial to return an alternative verdict to a lesser or alternative offence. Consideration should therefore be given in all cases to putting alternative charges to both the basic and the racially or religiously aggravated offences.

It must be made clear to the court, the defence and the victim why this is being done. It is not an admission of weakness of the case nor is it an indication that a plea of guilty to the "basic" and therefore less serious offence is acceptable.

The Crime and Disorder Act 1998 provides that a specific aggravated offence is committed if it involves racial or religious hostility. If both elements are present, then two offences are committed.

Where the offence is not a specific aggravated offence provided by the Crime and Disorder Act 1998 offence, only one charge can be put as there is only one offence established in law. However, if such an offence involves evidence of both racial and religious hostility, both elements should be drawn to the court's attention as an aggravating factor at sentencing, applying the provisions of section 145 Criminal Justice Act 2003.

In Henderson v Crown Prosecution Service [2016] EWHC 464 (Admin), the court decided that in order to avoid the objectionable course of convicting for both the underlying offence and the aggravated offence, the sensible course was to adjourn the trial of the underlying offence sine die.

If the defendant wishes to plead guilty to the underlying offence but contest the aggravated offence, that offer to plead should be noted but the plea should not be taken to the underlying offence alone.

Sentencing

The specific offences under the Crime and Disorder Act 1998 carry higher maximum penalties than the basic offence equivalents. Some of them also become either way offences in the aggravated form.

Statutory sentencing duty

In addition to the specific offences created by the Act, the law imposes a general duty on criminal courts, when sentencing an offender, to treat more seriously any offence which can be shown to be racially or religiously aggravated (Section 145 Criminal Justice Act 2003)

Prosecutors have a duty to present all relevant material to allow the court to pass sentence in accordance with the law. Racial or religious aggravation makes an offence more serious and the court has a duty to take this into account when it sentences a defendant.

Where the evidence to support s145 has been identified, instructions to the prosecuting advocate should include a request that an application for an uplift be made, with the basis for this clearly set out.

There is no procedure laid down by which the court is to determine whether a s145 uplift should be applied.

If there is a trial, although not an element of the substantive offence, ideally the issues will at least have been canvassed during the evidence, so that the defendant has an opportunity to deal with them. Care should be taken not to use this as an excuse to introduce evidence that is otherwise strictly inadmissible to prove the elements of the offence, if it has no relevance to the matter in issue in the trial.

Following conviction, whether after a trial or on a plea of guilty, the issue should form part of the presentation of the case on sentence. Any basis of plea should be scrutinised before acceptance, to ensure that the issue is either accepted or not denied. In most cases involving a plea, defendants are unlikely to accept that s146 applies to their case. See the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise for the principles to be followed when considering the acceptance of a plea.

In the event of a dispute, the burden of proving the elements of either limb of s145 is on the prosecution and the standard is the criminal one. Case law confirms that the judge should not draw an inference that the offence was so aggravated and pass sentence on that basis without putting the defendant on notice and allowing him to challenge the inference: see R v Lester 63 Cr App R (S) 29.

A Newton hearing may well be necessary. See the legal guidance on Newton Hearings for the procedure to be followed.

After hearing the relevant evidence, the court should state in open court whether the aggravating feature has been found proved: see s145(2). If it is not found proved, s145 will not apply and the court will proceed to sentence accordingly. If the aggravating feature is found proved, s145(2) will apply and any sentence that the court would have imposed for the "basic" offence should be increased accordingly.

In the case of those offences which could be charged as specific racially or religiously aggravated offences, it would not usually be appropriate following conviction for a "basic" offence then to seek to introduce evidence that the offence was racially or religiously aggravated under Section 145 - to do so would amount to introducing evidence of a more serious offence than that for which the defendant has been convicted (R v Druce 14 Cr App R (S) 691; R v Davies (1998) Cr App R (S) 380). It is important to bear this in mind at a number of key stages of the case, especially review and charge selection, and when considering any pleas offered by the defendant.

However in R v O'Leary [2015] EWCA Crim 1306, the Court of Appeal held that a sentencing judge was entitled in certain exceptional circumstances to apply a section 145 sentencing uplift when dealing with an underlying offence even though the defendant had not been charged with the racially aggravated form of the offence. In that case the indictment included several counts and the prosecution decided not to include a racially aggravated offence of unlawful wounding to avoid confusion.

The outcome would have been different if the defendant had been acquitted of the racially aggravated version of the offence; or if the racially aggravated offence had been withdrawn from the indictment.

Prosecutors should be familiar with the approach that courts take to sentencing in a case to which s145 applies. This is set out in the section on Hate Crime in the Magistrates' Court Sentencing Guideline.

The Guideline mirrors the guidance given in R v Kelly & Donnelly [2001] 2 Cr App R (S) 73 CA, which addressed the appropriate increase in sentence for racial aggravation and endorsed the following approach:

the court should first decide on the appropriate sentence without the element of racial or religious aggravation, but including any other aggravating or mitigating features;

the sentence should then be enhanced to take account of the racial or religious aggravation;

if the offence itself merits custody, that sentence should be enhanced by an appropriate amount to reflect the degree of racial or religious aggravation;

the judge should say publicly what the appropriate sentence would have been without the racial or religious aggravation.

Although the original guidance applies to offences charged as specific racially aggravated offences and to all other offences where section 145 Criminal Justice Act 2003 applies, it should also be taken as applying to religiously aggravated offences, following the amendment to the Crime and Disorder Act 1998.

In R v Fitzgerald [2003] EWCA Crim 2875 the Court of Appeal acknowledged the guidance contained in Kelly and Donnelly but distinguished it by noting there will be cases in which the aggravating feature of the offence is so inherent and integral to the offence itself that it is not possible sensibly to assess the overall criminality involved in such a discrete way. In such cases, the Court must assess the seriousness of the conduct involved and its criminality as a whole.

The position was further considered in R v Higgins [2009] EWCA Crim 708. The Court of Appeal reaffirmed the Kelly and Donnelly approach and noted this was now adopted by the Sentencing Guidelines for assault cases.

The court should always be invited to apply the staged approach that the Court of Appeal and the Sentencing Council recommend unless it is a rare case that relies on verbal abuse alone and where there are no abusive words other than the racist (or other hate) words the court should be invited to record and state in open court why it cannot follow the staged approach and prosecutors should ensure those comments are recorded. Note that under the Assault Guideline, the s146 statutory aggravating factor should be taken into consideration at step 1 (determining the offence category). There must be no subsequent element of double counting.

Prosecutors should be aware of the courts' powers to make any ancillary orders when sentencing. For more information, see the legal guidance on Sentencing - Ancillary Orders.

Unduly lenient sentences

The racially and religiously aggravated offences in sections 29 to 32 of the Crime and Disorder Act 1998 are eligible for referral to as unduly lenient sentences if sentenced in the Crown Court.

It is also possible that a crime that has been sentenced as a racially or religiously aggravated hate crime as per the requirements of s145 of the Criminal Justice Act 2003 may become the subject of an unduly lenient sentence referral (for example, wounding with intent, rape and robbery).

Schedule 21, paragraph 5(2)(g), provides for a starting point of 30 years (rather than 15 years) for the minimum term for a life sentence for murder aggravated on the grounds race or religion. S145 uplifts will not apply in such cases. For more information, see the legal guidance on Homicide: Murder and Manslaughter.